If you do any federal defense work, you despise the Sentencing Guidelines, both for their draconian approach to sentencing as well as their facile ambiguity, with vague yet overarching rules and are complicated by vague yet incomprehensible application notes. 

While they may not be mandatory (as they were for decades of defendants sent to prison forever because the Supreme Court neglected to mention it until Booker), they remain advisory for all and the rule for guilty pleas, which typically forbid the defense from seeking a below guidelines sentence.  Sure, there’s always a plea for the parsimony clause, but don’t bet your life on it.

So is it just us, or do judges think the guidelines are incomprehensible as well?  Enter Judge Richard Posner, writing for the 7th Circuit in U.S. v. Figueroa.

Economy of words is not a defining characteristic of lawyers, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a “supervisor.”…

Application Note 4 relates only to the organizer-leaders; we cannot see what guidance it provides to determining whether a participant who is neither a boss nor a grunt is a manager or (the same thing, just a different word) a supervisor.  When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”….

First, some news for Judge Posner. While he may not feel it worthwhile to “sweat” the details, trust me when I say that defendants do. A two to four level enhancement under the guidelines means a long time that you don’t get to sleep in your own bad. It matters. A lot. A whole lot.

But one has to admire Judge Posner’s “regular guy” approach to guidelines interpretation.

If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him — especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge.  So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective.

It’s the old wink, we know what it means, style of judicial interpretation.  Who doesn’t love a judge who winks?

But as long as we’re talking real (as opposed to those “dictionary synonyms” that try the reader’s patience), let’s dig a bit deeper.  Not too many people involved in drug dealing went to business school.  They aren’t necessarily adept at creating hierarchical organizations to facilitate the efficient functioning of their enterprise.  The basic premise of the guidelines, that criminals function much like any business, except that what they sell is illegal, isn’t always the case.

They’re sloppy.  They’re inefficient. People straggle into, then out of, then back into, crime as the opportunity presents itself. They take orders one day and give them another. When the chance to sell some drugs becomes available, they sell.  When there are no drugs to sell, they do something else.

Not every word out of their mouth (and conveniently caught on a wire) is about drugs. If they want rice and beans for dinner, they tell their spouse they want rice and beans for dinner. It’s not code for drugs.  Every time a number is mentioned, it doesn’t mean kilos. It may mean grams. It may mean something completely unrelated to drugs. This is because drug dealing isn’t always a steady job, and even if it is, the people involved aren’t talking about it 24/7. Like other people, they talk about other stuff as well. If they want to drink some beer, they may ask a friend to bring over a six-pack.  Sometimes, a six-pack is just a six-pack.

Years ago, when cell phones were still a novelty and cost about $12 a minute, I borrowed one from a client. We were driving back to Manhattan from the Bronx in the evening, after an arraignment of one of his friends, and I remembered that it was my mother’s birthday and I had neglected to call her. She was deeply hurt when this happened, as I learned the year before when I forgot as well.

I borrowed the cell phone and called my mother, giving her birthday wishes and mentioning, in passing her years on earth.  She was happy I called.

A year or two later, the fellow whose cell phone I borrowed was the lead defendant in a large, multi-defendant wire prosecution.  In perusing the line sheets, I happened upon a call from my guy’s cell phone by  “Unk Male” to “Unk Female” about a “birthday” with a very large number, characterized as “code for drug transaction”  involving an enormous number of kilos of cocaine.  I would have never imagined my very own mother alleged to be an unindicted co-conspirator. And me too.  I explained this to the judge, who had a good laugh about it (as did we all).  But it really wasnt funny at all.

So while Judge Posner may think it’s time to “get real” about the absurd efforts to quantify and categorize, to pigeonhole and rationalize, crime and sentence, and the sanitary theoretical components that go into a detached vision of how crime happens and what makes it more worthy of a severe sentence, let’s not forget one unfortunate detail:  It’s all a crock, start to finish.  Neither the prosecutor, the agents, the probation officer nor the judge has any firm grasp on how a conspiracy happens, or what the participants do, or how “real” the imaginations of people in suits are when it comes to how people on the street behave.

This is all just make-believe on the way in.  How good of Judge Posner to make it real on the way out.  How good of those protecting us from these conspiracies to know how it all really works.

H/T Sentencing Law & Policy